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Trump-proofing The Insurrection Act

Good luck with that

My post on Sunday referenced Ross Douthat’s flop-sweaty warning that President Biden should stop campaigning as if he is ahead. But credit the Washington Post Editorial Board’s warning, at least to Democrats in Congress, that while hoping for the best they should plan for the worst.

“Though the emergency powers that the Insurrection Act confers are inherently susceptible to abuse, presidents’ respect for democratic values and constitutional norms has by and large prevented that,” the Board begins. There’s still time to make some tweaks to the Act before January 2025.

Golly jeepers, who might they be referencing between the lines? Just so we’re clear:

Having gone unused since 1992, the Insurrection Act is perhaps obscure to the public today. It deserves more attention, given that there could be a second term for former president Donald Trump, who not only lacks respect for democratic norms but also actively encouraged a mob to descend on the Capitol on Jan. 6, 2021.

The law grants a president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy.” It does not define those terms. Nor does it require the president to get permission from state leaders. While the Posse Comitatus Act of 1878 generally restricts the use of the armed forces in domestic law enforcement, there’s an exception for other acts of Congress, which would cover the Insurrection Act.

Mr. Trump’s associates have reportedly drafted plans to invoke the law on his first day in office, to allow him to deploy the military against civil demonstrations. A partnership of right-wing think tanks, dubbed Project 2025, has drawn up executive orders to do so. Jeffrey Clark, a former Justice Department official who is one of the unnamed co-conspirators in Mr. Trump’s indictment in the federal election interference case, is leading this work. Mr. Trump has openly expressed regret for not using the Insurrection Act during the rioting that followed Black Lives Matter protests in the summer of 2020, bowing to governors who asked him not to send federal troops. “The next time, I’m not waiting,” he said at a November rally.

If we were playing Clue, Jeffrey Clark … in The Heritage Foundation … with the Insurrection Act might be a winning guess. He and John Eastman helped Trump very nearly murder the government on Jan. 6.

A group of national security and legal specialists assembled by the American Law Institute proposed amendments to the Act over a year ago. Specifically (in addition to cleaning up outdated language), that the president cannot invoke the Act unless there is violence that “overwhelms the capacity of federal, state, and local authorities to protect public safety and security.” Troop deployments “would “should not exceed 30 days absent renewed congressional authorization,” but would receive fast-track renewal. The president would have to provide Congress with written justification for invoking the Act within 24 hours “along with a summary of consultations with state authorities.” Also, no provision for judicial review. The Supreme Court has already signaled it would grant the president “significant deference.” Habeas corpus would remain in place.

The Republican-controlled House is unlikely to take up a reform bill before the end of the year, but perhaps there’s an opening for bipartisanship. The best vehicle would be an amendment to the must-pass national defense reauthorization bill, as Sen. Richard Blumenthal (D-Conn.) and Rep. Jamie B. Raskin (D-Md.) have discussed. It would be wise to modernize this law even if there were no chance of Mr. Trump’s election. Since there is a chance, it seems essential.

Not that the Act should not be modernized, but count me skeptical. What damage might Dictator On Day One do in 30 days? Written justification within 24 hours? What could Congress do if the president simply flouts the requirement? The Board is urging Congress to pass a law to rein in a man who believes he’s untouchable by law and who has survived 70 decades largely unaccountable to it.

The Board believes amending the Insurrection Act is still worth the effort.

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